Tuesday, July 5, 2011
Here’s a question that I’ve been thinking about in connection with the paper that I’m writing. Suppose that a state decides to impose an excise tax on abortions performed in the state. The rationale for the tax is: (1) we need more revenue; (2) it will discourage some abortions; and (3) it is a way of expressing moral disapproval of abortion.
A constitutional challenge to this tax would be that it imposes an “undue burden” on abortion rights under the Supreme Court’s analysis in Casey. This does not mean, though, that every tax on abortions would be invalid. In other words, an abortion tax is different from a poll tax (which is prohibited by the Twenty-Fourth Amendment and by Harper) and more like how we might look at a tax on guns. Some fundamental rights are free from taxes and others are not, though at some point a tax on an important constitutional interest would be struck down as too high. ... Granted, this is not a solution that will satisfy everyone (and I’m not saying that the Supreme Court majority would think this is acceptable), but it is worth considering.
In Taxing Abortion (July 29, 2009), I discussed the views of Jonathan Adler, Yvette Marie Barksdale, Susan Estrich, Andrew Koppelman, Glenn Reynolds, Kathleen Sullivan, and Eugene Volokh on this topic.